News about public-services-and-human-rights

A North Bay Transit bus driver refused service to the Nakogee family. Paula and her sons Kendall and Austin Nakogee alleged the denial of service was discriminatory because they were the only visibly Indigenous individuals amongst the crowd waiting to board the bus and were the only ones denied entry.

The HRLSC represented the Nakogee family before the Human Rights Tribunal of Ontario [HRTO]. In Nakogee v. The Corporation of the City of North Bay o/a North Bay Transit, 2024 HRTO 1838, the HRTO upheld their applications, finding that the facts supported an inference that the applicants’ race, colour, ancestry, place of origin and ethnic origin were factors in the bus driver’s decision to deny them service. The HRTO also found that North Bay Transit did not properly investigate the applicants’ complaints about the denial of services, which was an additional violation of the Human Rights Code.

The HRTO awarded $15,000 in general damages to each of the three applicants, for a total of $45,000. To address the respondent’s failure to address the applicants’ complaints, the HRTO ordered the respondent to develop a procedure for handling and investigating customer complaints, as well as retaining an expert to provide training to all staff on racial discrimination, racial profiling and Indigenous cultural competence.

Decision involving HRLSC client results in improved polices and procedures for persons with diabetes in police custody

In Powell v. Ontario (Solicitor General), 2023 HRTO 345, the HRLSC represented an applicant with Type 1 diabetes who alleged she had experienced discrimination during an interaction with police.

The HRTO Decision

On the evening of August 18, 2018, the applicant was taken into police custody as a result of a physical altercation with her then spouse, William Wright. Wright advised the police just before the applicant was taken into custody that she had diabetes. In addition, Wright brought the applicant’s insulin medication and glucose testing instruments to the police station a short time later, when he attended to provide a witness statement to police. Despite this, during her time in custody, the police made no inquiries of the applicant about her diabetes nor did the police offer her the use of her testing equipment or medication.

The HRTO found that the police had sufficient knowledge of the applicant’s disability that it had a duty to inquire as to whether the applicant needed access to her glucose monitor and insulin, stating that the applicant should have immediately been provided with an opportunity to check her blood sugar levels once the glucose monitor was provided by Wright. The failure to make any effort to determine the applicant’s medical status during her detention was found to be a breach of the respondent’s procedural duty to accommodate the applicant’s disability.

The Report:

To ensure future compliance with the Code, the HRTO ordered that the respondent must retain an external consultant to conduct a review of its policies, procedures and protocols related to the screening of individuals entering into custody, with particular focus on the treatment of persons with diabetes. The HRTO also awarded the applicant $2,000 in general damages.

Quotes from Report:

In February 2024, the external consultant, Gerry McNeilly, released his report entitled Medical Accommodations for Persons with Diabetes Arrested and Held in Custody. The key findings and recommendations from McNeilly’s report were:

• “Considering that diabetes is not a newly discovered medical condition and is, in fact, becoming more prevalent, officers should be aware of it, aware that individuals arrested and in custody may have diabetes and know the required approaches in dealing with treatment or the administering of medication.“

• “It must also be acknowledged that the OPP is responsible for policing large and small communities across Ontario, including northern and very remote communities and communities that may have large Indigenous populations, where the prevalence of diabetes maybe more profound. In my opinion, it is therefore more crucial that clear and details policies be created, and proper training be provided for officers in these detachment areas.“

• “I also found there is a need to convey to officers, through policies and training, that not all medical issues are easily visible. This means officers must be highly vigilant and ask every arrested person about their medical issues, and not act or rely on their own perceptions, observations or assumptions of the person being arrested. Some individuals with diabetes may wear identifying medical bracelets or carry other identification that indicate their medical situations. However, not everyone does, so it is absolutely necessary that officers err on the side of caution by being specific in questioning about medical conditions.“

• “A new policy on custody and prisoner care and control should include a duty to inquire about medical information for all arresting and custodial officers. This duty to inquire will go a long way to ensure the appropriate information is obtained and documented.“

• “Develop policies (if possible) that address the problems that could occur if officers rely solely on their own assumptions or observations to draw conclusions about medical conditions of people being detained. Ensure that policies or direction include asking the individual about their medical condition.“

School staff member’s alleged comments to student and his father were Code-based discrimination.

Race, Colour, Creed and Ethnicity/ Service, Facilities and Goods

In A.A. v. Vilma Canizalez, 2023 HRTO 1353, the Human Rights Tribunal of Ontario (HRTO) ruled on an incident of race, colour, creed and ethnicity-based discrimination over comments made at a school by a staff member towards a parent and a student.

The applicant, Ab. A. identifies as a Muslim man with brown skin and is a recent immigrant to Canada from Pakistan. Ab. A served as a litigation guardian for is son, A.A., the second applicant. On May 29, 2019, Ab.A. accompanied A.A. to school.

Incident started with school staff member’s comments about child’s sweatshirt:

While Ab.A. spoke with A.A.’s teacher, the respondent told A.A. to take off his sweatshirt as he was frightening other children. Ab.A. spoke to the respondent about her concern with A.A.’s hoodie. He then walked towards the school and told the respondent he would speak with the school administration. Ab.A. alleged the respondent stated as he was entering the school: “We have rules here. If you don’t like them, go back to your country.” After Ab.A. entered the school, the respondent called the police to report that Ab.A. had threatened her.

Results of the school’s investigation not reported to the father or son:

Ab.A. reported the incident with the school staff member to the principal. The principal advised there was no new or specific rule that prohibited the wearing of hoodies at school that would warrant the respondent confronting A.A. about his hoodie. Ab.A. then went to his workplace, where the police contacted him in response to the respondent’s complaint.

The school conducted an investigation into the incident. The conclusions of this report matched up with Ab.A’s allegation regarding the comment the respondent made to him. Ab.A. did not learn of the results of this investigation until two-and-a-half years after it was provided as part of a settlement with the school board.

Respondent denies allegations, called police on father:

The respondent denied the allegations, stating that she herself is a racialized immigrant to Canada. She claimed the issue with A.A.’s hoodie was that it was zipped up to cover his face and had a white skeleton on it. The respondent claimed A.A. was scaring the other children. The applicants disputed this and led evidence that the hoodie was plain black and was not covering A.A.’s head. Additionally, A.A. had speech-related disabilities that prevented him from engaging with other children.

The respondent testified that Ab.A. aggressively confronted her after she approached A.A. about his hoodie and that she had the right to call the police against Ab.A. as she had felt threatened by him. She denied making the discriminatory statement attributed to her and could not explain why the investigation report confirmed that she had.

A.A. no longer felt safe at the school where the respondent worked and transferred schools shortly after the incident. Ab.A. testified that as a relatively new immigrant who had not yet achieved citizenship he found being contacted by the police to be exceptionally distressing.

HRTO hears case and testimony of applicants and respondent:

The HRLSC successfully represented the applicants in a hearing before the HRTO. In A.A. v. Vilma Canizalez, 2023 HRTO 1353, the HRTO found the applicants’ version of events to be more credible than that provided by the respondent, particularly as it was supported by the police report and principal’s investigation report. There was sufficient evidence to support an inference that the father, Ab.A, and the son, A.A.’s and race, colour, creed and ethnic origin were factors in the respondent’s treatment of them.

The Tribunal’s decision:

The Tribunal’s decision awarded the applicants general damages in the amount of $5,000 for Ab.A. and $1,000 for A.A. The HRTO ordered the respondent to complete the Ontario Human Rights Commission’s “Human Rights 101” online eLearning course.

The Respondent has requested a reconsideration of the decision.